A definite trend is coming to the fore where developers are seeking reimbursement of their costs from councils who fail to determine their applications  within the 60 day time limit. Glen Eira has finally been caught with its pants down and ordered to pay Pitard Knowles $2086.20. In the great scheme of things, the sum is paltry – a mere drop in the ocean when we consider the multi-million dollar business which is council. Yet, this decision on Vickery Street, Bentleigh reveals much about the planning department and councillors’ stupidity and inadequacy.

This is another example where councillors probably sought to ingratiate themselves to residents (39 objections to a 4 storey, 47 apartment block). Their resolution to again lop off one storey and reduce the number of proposed apartments came after the developer went to VCAT. Yet again they imposed conditions which were ludicrous given the planning scheme and yet again the VCAT member proclaimed the inadequacies of the planning scheme. Councillors just do not seem to get the essential point. We repeat – on EVERY SINGLE DECISION WHERE COUNCILLORS reduced the number of storeys and/or apartments, and the developer went to VCAT, the developer won. This has been going on for years and years – but our lot simply don’t get it. The fault is NOT VCAT per se – but the planning scheme. Thus thousands upon thousands of ratepayers’ money was been washed down the drain defending the indefensible at VCAT instead of addressing the real problem – the planning scheme, its zoning, its schedules, its lack of preferred character statements, its lack of real policy!

This Vickery Street case however, introduced a new element. The shoddy performances of the planning department. We have to wonder why, if council can spend $4,500 per day to solve its own internal squabbles, why can’t it spend money on ensuring that the planning department is properly resourced. We’ve already pointed out in a previous post the number of staff involved in ‘public relations’ compared to the number of staff working in planning and traffic combined!

Here is part of what the VCAT member stated –

This is a review under s79 of the Planning and Environment Act 1987 because the responsible authority failed to grant a permit after considering the application for 104 days. Section 115CA of the Victorian Civil and Administrative Tribunal Act 1998 provides the opportunity for an applicant to request the Tribunal’s fee to be reimbursed in these circumstances. At the completion of the hearing the applicant requested the reimbursement of its fee, being $2086.20.

  • The responsible authority requests the application to reimburse fees be dismissed because the permit application is complex, there were unavoidable scheduling constraints caused by the Christmas holiday period and it facilitated discussions with the applicant and objectors by convening a planning forum in January 2016 before it was to be presented to a Council meeting in February 2016. These reasons are rejected by the applicant.
  • I agree with Mr Bromley that the proposed development is not particularly difficult or complex for the following reasons:
  • The Council has considered many three and four storey apartment buildings in Bentleigh and its other urban villages in contexts similar to Vickery Street.
  • The proposed development comprises a design, height and massing that is similar to many other developments designed by Steller. The proposed layout does not differ in any significant respects to other proposals previously considered by Council.
  • The planning policy, amenity and car parking issues are well known to Council.
  • The planning scheme has not changed for some time and provides a well-known and understood assessment framework. There are no recently approved planning zones, policies or overlays that add complexity to the assessment.
  • No external referrals were required that may have added complexity to, or delayed the assessment.
  • The Council has had the benefit of multiple Tribunal decisions on similar applications to guide its assessment.
  • With regard to the conduct of the applicant, the responsible authority accepts it has not contributed to undue delays by not providing information in a timely manner, delaying public notification, or in any way acting vexatiously or unprofessionally.
  • Mr Bromley says the Council took an unreasonable time from the completion of public notification in mid-November 2015 to intending to decide the application early February 2016. He says the time required to arrange and conduct a planning forum on 13 January 2016 resulted in unnecessary delays. He says the application could have been presented to a Council meeting in December.
  • Mr Bromley says the planning forum in January 2016 made no positive contribution to the resolution of issues or the merits of the proposal. It only enabled the objectors to express their concerns with the development. He says Council did not actively engage with the parties between November 2015 and late January to mediate an outcome.
  • The responsible authority says it processed the application with reasonable promptness, the time periods were not unusual for a larger development, and the planning forum is a necessary part of Council’s assessment process. The Council could not truncate the application process over the Christmas holiday period.
  • While I agree with Mr Bromley that a three week period to give directions for public notification following the submission of all information is frustrating, it is not unusual in a busy planning office, and would be generally acceptable. If that were the only delay, the claim for reimbursement of fees would have limited weight.
  • Hence I have to decide if a delay in the order of six weeks (between Council meetings in mid-December 2015 and early February 2016) to enable the application to be discussed at a community planning forum was justified, and whether Council proactively sought to resolve outstanding issues in this period.

AND HERE’S THE REAL STING IN THE TAIL –

  • By contrast effective mediation requires considerable time and meetings needs to be led by expert mediators. Time is needed to enable parties to express their concerns, for the real issues to be identified, and for solutions to emerge. Parties often have to be actively encouraged to collaborate to resolve their differences and to find acceptable solutions.
  • I understand that Council only arranged the planning forum between mid-December 2015 and February 2016, and I accept Mr Bromley’s assertion that Council made no efforts to conduct mediation outside the planning forum.
  • In my view, Council made the conscious decision to defer considering the application in December 2015 so it could convene the planning forum. It was aware there was limited prospect the planning forum would be likely to resolve the issues or add new information that was not already available on the file (provided with the application, referral advice and objections) and summarised in the officer’s report.
  • It did so knowing it would delay its consideration of the application for at least six weeks. It did so knowing that it could face a review at the Tribunal under s79 of the Act, and consequently it would be likely to have to respond to an application to reimburse fees. It took no other actions such as mediation to resolve the planning application in this period.
  • it is not acceptable that the arrangements for a planning forum commence after the technical assessment has been completed. I consider Council has to arrange these much earlier in the assessment process. The planning forum should not unduly delay the presentation of an application to a Council meeting for a decision. It is not acceptable the permit applicant has to wait some weeks for a decision that could be made earlier, particularly if the planning forum is highly unlikely to add new information or does not form part of a genuine mediation process.
  • I am satisfied the Council unduly delayed its decision on the application and the applicant’s fees should be reimbursed.

Source: http://www.austlii.edu.au/au/cases/vic/VCAT/2016/920.html

COMMENT

Council’s Planning Conferences are not there to achieve real ‘compromise’ in our view. Their function is primarily a public relations exercise. It would be most informative if council were to provide the following data so that residents could assess for themselves council’s processes and their efficacy –

  • How many times has the developer not shown up at these conferences?
  • How many times have MAJOR changes occurred to the plans as a direct result of the conference?
  • How many times has the officer failed to include all residents’ views in his/her report to council?
  • How many times has the developer or the objectors walked away satisfied that a ‘consensus’ has been arrived at?
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